The public procurement bidding process in USA

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Introduction

Public procurement in the US is governed by a number of different statutes and regulations. Most of the statutes applicable to civilian agencies are found in Title 41 of the United States Code, and those statutes specific to military procurement are found in Title 10. In addition, government procurement policy and requirements are implemented through a uniform set of regulations, the Federal Acquisition Regulation (FAR), found in Title 48, Chapter 1 of the Code of Federal Regulations (CFR). Many agencies, including the Department of Defense (DoD), have their own supplemental regulations that supplement the FAR. The primary underlying principles are competition, transparency, integrity and fairness.

The agencies enforce federal procurement policy and rules through acquisition personnel, such as contracting officers, offices of inspectors general providing oversight to fight fraud, waste and abuse and ensure compliance with the various statutes and regulations, and suspension and debarment officials with authority to suspend or debar contractors from doing business with the government. An additional enforcement tool, which can be invoked by a private person whistle-blower, is the civil False Claims Act (FCA), which imposes liability on persons and companies that submit fraudulent claims to the federal government.

The US has acceded to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) and federal procurement regulations are largely consistent with the procurement obligations of that agreement, with some exceptions, such as contract set-asides for US small businesses and preferences for domestic products.

Year in review

The US federal procurement system is constantly updated through legislation, including annual appropriations statutes that include new requirements or change existing requirements, regulations implementing the legislation, agency rulemaking and case law interpreting the laws and regulations.

Building on recent efforts to enhance cybersecurity, the Fiscal Year 2021 National Defense Authorization Act (NDAA) requires a new assessment of the current National Cyber Strategy,² institutes vulnerability assessment requirements,³ and requires DoD to evaluate implementation of a Defense Industrial Base threat information-sharing programme,⁴ among other measures. Further, on 14 July 2020, the FAR Council published an interim rule implementing Section 889(a)(1)(B) of the 2019 NDAA, which broadly prohibits executive agencies from contracting with entities that use covered telecommunications equipment or services produced by certain Chinese entities, even in the absence of a nexus to the performance of government contracts.⁵

In notable FCA developments, courts are still grappling with materiality as it relates to cybersecurity. In United States ex rel Adams v. Dell Computer Corp, the court found that an alleged vulnerability in systems sold to the government did not rise to the level necessary to show materiality because the relator did not demonstrate any requirement that the systems be defect-free for the contract at issue; and the government continued to pay for the systems after it was made aware of the issue.⁶

Courts also continued to grapple with the falsity requirement, with a split over whether a claim needs to be 'objectively' false.⁷ In United States v. Care Alternatives, the Third Circuit rejected the objective falsity standard set out in the Eleventh Circuit opinion in United States v. AscercaCare, Inc, finding that the standard was focused on the separate element of scienter.⁸ The Supreme Court subsequently denied Care Alternatives' petition for certiorari, leaving the split unresolved.

In bid protest cases, there were notable developments in several key areas. First, the Government Accountability Office (GAO) sustained two protests related to conflict challenges. In Teledyne Brown Engineering, Inc,⁹ GAO sustained a protest where an agency evaluator had personal conflicts due to his social relationship with an offeror, but the agency failed to take steps to mitigate the conflicts. In AT&T Corp,¹⁰ GAO sustained a challenge based on an impaired objectivity conflict, finding that because the awardee would potentially assess its own performance, this created a potential unmitigated conflict.

Second, two recent decisions demonstrate the unsettled nature of the Blue & Gold Fleet waiver doctrine. In Inserso Corp v. United States,¹¹ the Federal Circuit found the protestor had waived its challenge to the agency's release of its information as part of an earlier debriefing given to offerors in the unrestricted contract pool. The Federal Circuit found that, under Blue & Gold Fleet, Inserso waived its challenge because it did not file a pre-award protest in time. In a lengthy dissent, Circuit Judge Reyna suggested that the waiver doctrine was invalid given the six-year statute of limitations under the Tucker Act. Separately, in Harmonia Holdings Group LLC v. United States,¹² the Court of Federal Claims found Harmonia waived its challenge to the terms of a solicitation by waiting five months to file at the Court after an unsuccessful agency protest. Harmonia appealed this ruling, and a decision that may clarify the scope of Blue & Gold Fleet is imminent.

Finally, to address increased demand to combat the covid-19 pandemic, the US government used the rarely invoked Defense Production Act (DPA) of 1950, which provides a broad set of authorities to accelerate production lines and orders in response to national emergencies.¹³ The DPA was used to increase production of critical supplies, such as ventilators and personal protective equipment, and to bolster vaccine production and testing moving into 2021.¹⁴ Federal agencies also increasingly used their delegated authority to place priority-rated orders with industry, requiring contractors to prioritise, accept and fill rated orders.¹⁵ This created challenges for contractors in industries that were otherwise unaccustomed to the DPA process.¹⁶

Scope of procurement regulation

i Regulated authorities

All federal executive agencies are subject to the FAR, subject to only a few exceptions (e.g., Federal Aviation Administration, United States Postal Service, the Tennessee Valley Authority and Amtrak).

ii Regulated contracts

The FAR and agency FAR supplements govern public procurement regardless of sector, although specific provisions depend on the contract type (e.g., services versus goods versus construction, commercial items versus non-commercial items, firm-fixed price versus cost reimbursement), contract value and other considerations. With only a few exceptions, the FAR requires all contracts to be awarded competitively, which means all responsible offerors are eligible to compete for award or for awards set aside for certain types of business concerns (i.e., set aside for small businesses).¹⁷ If an agency chooses to award a contract without competition, the contracting officer must typically complete a 'justification and approval' and obtain approval for a sole source award, based on specifically identified circumstances set out in the FAR.¹⁸

Certain clauses within the FAR are only included in contracts above a certain dollar threshold. While that threshold may vary by clause, all contracts that fall below the micro-purchase threshold (currently US$10,000) are exempt from the requirements for competition.¹⁹ In addition, contracts at or below the simplified acquisition threshold (currently US$250,000) may be awarded using a simplified acquisition process and include only a limited number of FAR clauses.²⁰ Furthermore, the FAR allows for a streamlined acquisition process for the acquisition of 'commercial items', as defined by FAR 2.101, which includes both items and services, and generally includes products 'of a type' offered for sale to the general public or such products that have undergone minor modifications or modifications of a type offered to the general public.

The Anti-Assignment Act, 41 USC Section 6305, prohibits the assignment of a government contract from one entity to another without government consent, but the FAR dictates specific procedures for executing a novation agreement among the parties (the transferee, transferor and the government), a process that requires early and active engagement with the customer agency in the event of an internal reorganisation, merger or an asset purchase.

Other transaction authority (OTA) refers to a set of statutes that allow certain agencies to enter into agreements that are exempt from the FAR and many statutes that apply to procurement contracts, grants and cooperative agreements. While OTAs have been around since 1958, they have grown in popularity as DoD has made a special push to leverage its OTA authority as opposed to the traditional FAR procurement process.²¹ DoD currently has permanent authority to award OTAs for research, prototype and production purposes.²² Other agencies with OT authority include NASA and the Departments of Energy and Homeland Security.

Special contractual forms

i Framework agreements and central purchasing

Framework agreements, frequently referred to in the United States as indefinite-delivery/indefinite-quantity (IDIQ) contracts, are governed by FAR Subpart 16.5. Among other things, the solicitation for such a contract must: (1) specify the period of the contract, including any options; (2) specify the total minimum and maximum quantity of supplies or services the government will acquire; (3) include a statement of work sufficiently detailed to allow a prospective offeror to decide whether to submit an offer; and (4) state the procedures to be used in issuing orders, including – if multiple awards may be made – the selection criteria to be considered for each order.²³

There is a statutory preference for awarding multiple IDIQ contracts for the same or similar services or supplies.²⁴ The competition requirements in the FAR do not apply to individual orders under such IDIQ contracts, but the contracting officer has to provide each awardee with 'a fair opportunity to be considered for each award exceeding US$3,500 issued under multiple deliver-order contracts or multiple task-order contracts'.²⁵ The contracting officer is not required to contact each of the multiple awardees under the contract before awarding an order that does not exceed US$6 million, so long as the contracting officer has provided the awardee a 'fair opportunity to be considered'.²⁶

While central purchasing may occur on the state and local level, each federal agency (or sub-agency or sub-component) is generally responsible for making procurements on its own behalf. However, agencies frequently make purchases using interagency contracting vehicles, through government-wide acquisition contracts (GWACs), the Multiple Award Schedules (MAS) programme and other multi-agency contracts used by more than one agency pursuant to the Economy Act, 31 USC Section 1535.

ii Joint ventures

In the United States, most public–private partnerships (PPPs), including joint ventures, are at the state level and approximately half of the states have PPP-enabling statutes that define the procedures for establishing a PPP. The actual procurement procedures vary by state. While not as common, PPPs exist in the federal context as well, such as the National Institute of Standards and Technologies' National Cybersecurity Center of Excellence, which seeks to generate solutions for cybersecurity challenges,²⁷ as well as various PPP opportunities with the Department of Transportation for design and construction projects.²⁸ The requirements for private companies wishing to participate in a PPP vary by opportunity and agency.

The bidding process

i Notice

FAR Part 5 provides a central set of 'policies and procedures for publicising contract opportunities and award information'.²⁹ For contract actions expected to exceed US$25,000, federal agencies must post a synopsis of the contract action at a government-wide point of entry (GPE). The main GPE used for federal procurements is the System for Award Management (SAM) website found at beta.sam.gov.³⁰ The USASpending.gov site is also used by the US government as a repository for awarded contracts. Agencies are generally required to post a notice of proposed contract action for at least 15 days prior to the issuance of a solicitation for proposals or bids and must provide for a minimum response time of 30–45 days.³¹ For contracts utilising procedures other than full and open competition, a synopsis of the sole-source decision must be posted depending on the type of contract.³²

ii Procedures

Government agencies must utilise procedures for full and open competition of contracts wherever possible. The parameters of competition are delineated in CICA, 41 USC Section 253 and FAR Part 6. The two main types of competitive procedures are sealed bids and competitive proposals.³³

For sealed bidding procedures under FAR Part 14, offerors must submit a bid in response to an invitation for bids issued by the agency. Bids are opened publicly by the agency and evaluated without discussions. Award is made based on price and 'price-related factors' included in the invitation for bids, and is made to the lowest priced bidder found to be responsive based on the criteria set out in the invitation.³⁴

Negotiated procedures under FAR Part 15 are more commonly used in competitive procurements. Under these procedures, offerors must submit proposals responding to specific instructions and evaluation criteria supplied in the solicitation.³⁵ Once offerors submit proposals, agencies have the option to engage in exchanges with offerors to clarify points in their proposals or raise significant weaknesses or deficiencies.³⁶

Different procedures govern the more limited situations where full and open competition is not used. For example, federal supply schedule contracts with the General Services Administration are governed by specific procedures in FAR Part 8.4. Task and delivery orders issued under IDIQ contracts are governed by FAR Part 16. Small business contracts are governed by specific procedures set out in FAR Part 19.

iii Amending bids

Bids submitted under sealed bidding procedures may be amended or withdrawn if notice is provided prior to the time set for bid opening.³⁷ Similarly, under negotiated procedures, proposal revisions or modifications must be received by or before the time set for submission of proposals.³⁸ Proposals submitted under negotiated procedures may also be revised after submission in response to discussions with the agency.³⁹

Eligibility

i Qualification to bid

Under FAR Part 9, only contractors that are found to be responsible by the procuring agency may bid on government contracts. Agencies will evaluate an offeror's financial resources, record of performance, operational controls, means of performance and record of integrity and business ethics when determining responsibility.⁴⁰ In situations where particular skills or resources are necessary, agencies may include additional 'special standards' in the solicitation.⁴¹

In addition, some procurements may be restricted to small businesses or small businesses with certain socioeconomic preferences (i.e., women-owned, veteran-owned, etc.). Procurements for classified defence programmes are limited to companies that meet certain standards for classified programmes. Agencies may also limit the issuance of certain solicitations to holders of existing GWAC or IDIQ contracts.

ii Conflicts of interest

Agencies are required to evaluate proposals for potential Organizational Conflicts of Interest (OCI) 'as early as possible' in the procurement process and must 'avoid, neutralize, or mitigate significant potential conflicts before award'.⁴² In certain circumstances, OCI's may also be waived by an agency at the request of the contracting officer and by approval of the 'agency head or designee'.⁴³ OCIs arise in three main scenarios: (1) impaired objectivity; (2) biased ground rules; or (3) unequal access to information.⁴⁴ An impaired objectivity OCI arises where a contractor is in a position to evaluate its own or its competitor's performance or products. A biased ground rules OCI arises where a contractor, as part of one government contract, sets the rules for another contract that it then bids on. An unequal access to information OCI arises where an offeror gains access to competitively useful non-public information under one contract that can be used to obtain another contract (e.g., competitor proprietary information, government confidential information, etc.).

Offerors may also be conflicted through a related doctrine known as 'unfair competitive advantage'.⁴⁵ An unfair competitive advantage is related to the same principle as an unequal access to information OCI, where access to competitively advantageous non-public information is obtained through a former government official.

Personal conflicts are dealt with through a variety of separate restrictions on US government employees that restrict their activities once they leave government service. The FAR also requires contractors to prevent personal conflicts of interest of their employees, providing specific restrictions on contractor employees that perform 'acquisition functions' that are 'inherently' governmental.⁴⁶ Contractors participating in such functions must have specific procedures in place to screen for personal conflicts.

iii Foreign suppliers

Public procurement in the US is largely open to foreign companies, because, historically, the US has placed restrictions on the procurement of foreign-origin supplies, services and materials, through domestic preference regimes and not the citizenship of the company providing the good.

Although US laws and regulations allow foreign companies to compete in the US government market, certain restrictions apply to contracts that implicate national security concerns. This includes contracts that require access to classified information, which are wholly limited to US companies and US citizen employees, and contracts that require access to items that are subject to US export controls. For contracts requiring access to classified information, there are certain steps that a foreign corporation can take to insulate a US subsidiary from foreign ownership, allowing the government to award the US subsidiary contracts that require access to classified information. With respect to export controls, certain activities may trigger a requirement for a US presence and export authorisation.

Award

i Evaluating tenders

Agencies are required to include the standards and evaluation criteria used for evaluating offerors in the solicitation. For sealed bidding procurements, the agency will award to the lowest bidder that satisfies the requirements in the invitation for bids. For negotiated procurements, solicitations can include a variety of factors for evaluation but, at a minimum, must address price/cost, quality, past performance (with limited exceptions) and the extent of small and disadvantaged business concern participation (where subcontracts are used). Procurements can be evaluated on a 'lowest price technically acceptable' (or LPTA) basis, although, as discussed above, its use is increasingly limited. Many negotiated procurements are decided on a best-value basis and require the agency to conduct a trade-off between cost and non-cost factors if award is made to a higher-rated but higher-priced offeror. Agencies must document the rationale for their evaluation and selection decision.

ii National interest and public policy considerations

The United States has historically given preference to products made in the United States under the Buy American Act (BAA); however, the US has opened up its government procurement to reciprocal international competition, through multilateral and bilateral trade agreements (such as the WTO GPA), as implemented by the Trade Agreements Act (TAA). The BAA effectively acts as an evaluation preference for 'domestic end products' or 'domestic construction materials', which are products 'manufactured' in the United States and for which more than 55 per cent of the total cost of the components are for components produced or manufactured in the United States (although the component test is waived for commercially available off-the-shelf items).⁴⁷ The TAA, which applies to acquisitions over certain dollar thresholds, waives the BAA for the acquisition of end products or services from 'designated countries' (including those countries with which the US has entered into bilateral or multilateral agreements opening up government procurement for reciprocal treatment), and prohibits the acquisition of end products or services from 'non-designated countries'. The TAA requires products to be wholly made or 'substantially transformed' in the United States or a designated country.⁴⁸ There are distinct domestic preferences that apply to procurement by DoD and to state and local projects funded by federal grants.

The United States has a policy to provide maximum practical opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business and women-owned small business concerns.⁴⁹ Agencies are required to set-aside certain contracts for small business concerns when there are expected to be at least two small businesses that can perform the work or provide the products being purchased.⁵⁰ This policy for contracting with small business concerns flows down to subcontracts as well; contracts exceeding certain dollar thresholds are required to subcontract with small business concerns to the maximum practicable extent and, if certain conditions are met, submit to the government a small business subcontracting plan that indicates the contractor's goals for small business subcontracting.⁵¹

The government also implements numerous public policy considerations through its procurement policy, including policies for equal employment opportunity,⁵² non-discrimination because of age⁵³ and anti-human trafficking.⁵⁴

Information flow

The FAR encourages agencies to engage with industry to identify and resolve concerns during the procurement process. In the acquisition strategy phase, this includes seeking input through requests for information or issuing a draft solicitation requesting feedback from industry. Once the solicitation is issued, agencies will often provide for a question and answer period and will incorporate responses in the solicitation, to clear up any issues with interpretation prior to bid submission.

In negotiated procurements, after proposals are submitted, the agency can engage in several different types of exchanges with offerors.⁵⁵ Clarifications are often used to clear up ambiguities in an offeror's proposal through the issuance of questions that do not allow proposal revisions. Agencies may also engage in discussions, which provide an opportunity for offerors to materially revise or modify their proposals. Discussions must be meaningful, equal and not misleading, and must address significant weaknesses and deficiencies identified by the agency. If engaging in discussions, the agency must establish a competitive range of the most highly rated proposals. Offerors who are not included in the competitive range are required to be notified of their exclusion. If the agency intends to award without discussions, it must so state in the solicitation.

Offerors in negotiated procurements are entitled to request a debriefing if they are eliminated from consideration prior to award or after the award is made.⁵⁶ A debriefing provides the offeror with an overview of its evaluation, the rationale for award and any significant issues that may have prevented it from being selected for award. The debriefing will normally include the awardee's price, overall technical rating, and ranking of offerors if any such ranking was developed, but not specific information about the awardee's proposal or evaluation. DoD now allows offerors to ask additional questions after their initial debriefing, and expansion of debriefing rights is expected to follow in civilian agencies.

Challenging awards

Disappointed bidders can challenge an agency's award by filing a bid protest. There are several different forums for protest, including the contracting agency, GAO and the US Court of Federal Claims (COFC). The terms of the particular procurement may affect which forum a contractor can and should select. For example, task or delivery order protests generally cannot be brought at COFC (except in very limited circumstances), and such protests at GAO are otherwise limited to orders over US$25 million for defence agency procurements and US$10 million for civilian agencies.⁵⁷

GAO tends to be the most popular forum for bid protests. For Fiscal Year 2020, 2,149 protests were filed at GAO. Of those, 545 cases went to a decision on the merits and 84 cases were decided in the protester's favour. This is an effective sustain rate of 15 per cent; however, 51 per cent of protests are considered to have been resolved 'effectively', meaning they were either sustained or the agency took corrective action.⁵⁸

i Procedures

The procedures for a bid protest vary by forum. To have standing to protest, a protester must demonstrate that it is an 'interested party' to the procurement, meaning that it has submitted a bid or proposal and has a direct economic interest in the award decision. Essentially, a protester must demonstrate that it would have a 'substantial chance' for award if it prevails in its protest.

GAO has well-established procedures governing protests. A protester at GAO must file its protest within 10 days of when it knew or had reason to know of its grounds for protest. In the post-award context, a protest must be filed within 10 days of award or within 10 days of a required debriefing. If a debriefing is requested and required, the protest may not be filed prior to the debriefing date. CICA also provides for an automatic stay of performance if the protest is filed within 10 days of award or five days of a required debriefing, which may be overridden by the agency under limited circumstances. Any stay override can be challenged at COFC. Once the protest is filed, the agency must respond by filing its agency report (the response to the protest arguments) within 30 days of filing. The protester then has 10 days to file comments to the agency report. Supplemental protests can also be filed if new information becomes available as long as they are independently timely (filed within 10 days of when the protester knew or should have known of the basis for its protest). GAO protests must be decided within 100 days of filing.

For COFC protests, there is no similar deadline to file a protest, but protesters generally file as quickly as possible. There is no automatic stay of performance for protests filed at COFC. To stay performance, protesters must either negotiate an agreement with the agency to voluntarily stay performance, or litigate a motion for preliminary injunctive relief. Protesters must demonstrate immediate and irreparable harm to receive an injunction. COFC is not subject to the same 100-day decision deadline as GAO, but protests at COFC are heard and decided on an expedited schedule.

Decisions from the agency, GAO or COFC can also be reviewed further or appealed in the event of an adverse decision. If you lose an agency challenge, you can refile your protest with GAO, and after that COFC (although you only get one CICA stay, which expires at the end of your first protest with the agency or GAO). Adverse COFC decisions can be appealed to the US Court of Appeals for the Federal Circuit.

ii Grounds for challenge

To prevail, a protester must show that the agency's decisions were arbitrary or unreasonable. A protester must also demonstrate competitive prejudice for a protest to be viable, meaning that, but for the alleged error, it would have had a substantial chance of receiving the award.

Common protest grounds include challenges to the reasonableness of the agency's technical, past performance or price evaluations, disparate treatment of offerors, flaws with the discussions process, errors with regard to the agency's responsibility determination, challenges to the awardee's qualifications, conflicts (OCIs, unfair competitive advantage, etc.) and flaws in the agency's best value determination or trade-off decision. In GAO's annual report to Congress for FY 2020, GAO indicated that 'the most prevalent reasons for sustaining protests during the 2020 fiscal year were: (1) unreasonable technical evaluation; (2) flawed solicitation; (3) unreasonable cost or price evaluation; and (4) unreasonable past performance evaluation'.⁵⁹

iii Remedies

Remedies for bid protests vary by forum. GAO may only make recommendations regarding an agency's corrective action if it sustains a protest, but as a matter of practice, all agencies follow the recommendation because otherwise they must report to Congress. Common GAO recommendations include re-evaluation of proposals, reopening discussions and the submission of a new selection decision. COFC protests are decided by court order for declaratory or injunctive relief. In either forum, winning a protest will not necessarily result in award to the protester, but awards directed in this way are possible (if exceedingly rare). Successful protesters may also be able to recoup bid and proposal costs, and reasonable attorney's fees. Punitive damages are not permitted.

Outlook

Cyber and supply chain security will continue to be points of emphasis in the procurement landscape, as evidenced by the recent creation of the Federal Acquisition Security Council (FASC) in 2020 with the issuance of an interim final rule.⁶⁰ The FASC will have broad power to recommend the exclusion of products or services that pose a threat to the supply chain. Further, efforts to strengthen cybersecurity are continuing with DoD's issuance of DoD Instruction 5000.90, which provides for assessment of contractors' compliance with the newly introduced Cybersecurity Maturity Model Certification, among other efforts to mitigate risk.⁶¹

Separately, we expect to see increased expansion of domestic preference policies. On 19 January 2021, the FAR Council issued a final rule revising the BAA regulations, increasing the domestic content requirements and the preferences for domestic products. Days later, the Biden administration issued EO 14005, articulating its policy of bolstering federal government purchase of American products and directing a number of actions, including the creation of a new Made in America office and a centralised database to maintain and publicise information on waivers from domestic preference requirements.

Finally, there is likely to be an uptick in fraud actions related to covid-19 efforts moving forward. In January 2021, the Department of Justice announced its first civil settlement to resolve allegations of fraud related to the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The CARES Act also created a new special Inspector General position to monitor funds distributed under the Act. Given all of this, and the change in administrations, increased investigations and prosecutions of fraud related to covid-19 relief are expected.